71 So. 310 | Miss. | 1916
delivered the opinion of the court.
This is an appeal from a judgment awarding appellee damages for an injury sustained by him while in appellant’s employ, by reason of its failure to exercise reasonable care to furnish him with reasonably safe tools with which to work.
Appellee was an experienced blacksmith, working as such for appellant in its repair shop at Hattiesburg. About a week prior to the 20th da}** of February, 1914, the anvil furnished him by appellant with which to work broke, and upon his calling the attention of appellant’s master mechanic and shop foreman thereto they decided to have it repaired and returned to appellee for further use, directing him to use, while this was being done, one of .three other anvils, of which he was given the choice, not then in use and which had not been in use for some time. He selected one which he and the foreman thought was the best of the three and used it until he received the injury complained of. This anvil was of iron, faced with steel, about four inches of which steel facing was broken off ‘ ‘ on the horn end of it. ’ ’ The anvil was otherwise apparently in good shape, and the absence of this four inches of the steel facing did not interfere with its use. Appellee, while testifying as a witness at the trial, said:
Why he did not want the anvil does not appear, nor does it appear that appellee, the master mechanic, or the foreman considered the anvil defective in the sense that appellee would be in danger when using it.
On the 20th day of February, 1914, appellee, with the assistance of a helper, was engaged in cutting • a five-eighth inch iron rod into two pieces, and had cut it “pretty well in two ’ ’ when he shoved the cut portion over the edge of the anvil so the helper could Break it off by striking it with a sledge hammer. This the helper proceeded to do, striking, according to the evidence for appellee, both the rod and the edge of the anvil a glancing blow, ■and when he did so a small splinter from either the rod or the anvil flew up and struck appellee in the eye, resulting in his losing the sight thereof. On the evidence, some of which is here omitted, whether this splinter came from the rod or anvil was a question of fact for the jury if the. case had been otherwise one for their consideration. This blow was struck not on the broken part of the anvil, but on the edge of that part of the facing thereof that was apparently in good shape. No evidence was introduced ■tending to show that the facing of this anvil was defective, except that the anvil was exhibited to the jury, and appellee himself testified that it was too hard, but when asked how he knew this, answered, because of the splinter ■flying from it.
The uncontradicted evidence for appellant is that it is impossible to manufacture an anvil that will not be liable to splinter when struck on the edge with a sledge hammer in the manner in which this anvil was struck on the occasion in question. . At the close of the evidence appellee requested a peremptory instruction, which was refused.
This burden was not met by appellee in the case at bar, for we are not prepared to hold that the mere fact, even though unexplained, that this splinter came from the anvil amounts to proof that the anvil was too hard and therefore defective and unsafe; but even should we so hold, it does not follow, even prima facie, from that fact alone that appellant knew of the defect in the anvil or could have discovered it by an inspection, reasonable or otherwise.
On the evidence it seems clear that appellee’s injury was the result of an unfortunate accident for which no one was to blame, unless it was the helper, who, according to appellee, should not have struck the anvil in breaking the rod, but should.have struck the rod only. The peremptory instruction requested by appellant should have been given.
Reversed and remanded.
